NEWS ANALYSIS : Experts Say Suit Over Immigrant Costs Will Fail

SACRAMENTO — Gov. Pete Wilson's lawsuit seeking federal reimbursement for the cost of imprisoning illegal immigrants convicted of felonies in California has little chance of succeeding in court, according to legal experts interviewed by The Times.

Wilson's complaint, to be filed today in U.S. District Court in San Diego, will quickly run into what amounts to a legal brick wall: a doctrine that says the federal government cannot be sued for damages unless it first consents to the lawsuit.

But even if the state could find a way past that obstacle, which would require congressional approval, the suit's central argument--that the federal government is violating the state's sovereignty--relies on a theory that the U.S. Supreme Court has viewed with considerable skepticism for at least half a century, constitutional scholars said.

"This lawsuit really has no chance of success," said Erwin Chemerinsky, a USC constitutional law professor. "It's purely being done for political reasons. It's using the legal system to make a political statement."

Wilson aides dispute that charge. Although acknowledging that the suit is breaking new legal ground, they contend that the complaint has considerable merit. The state, they say, should not abandon its case simply because it might have difficulty winning it.

"It's not going to be easy," said Janice Brown, Wilson's top legal adviser. "But I don't concede it's not worth trying. There are some very real legal questions here that need to be addressed. We are not filing a lawsuit that we believe to be utterly frivolous."

The state's lawsuit seeks $377 million from the federal government to cover the costs of incarcerating nearly 17,000 illegal immigrants who have been convicted of felonies, enough inmates to fill eight prisons. The state also wants $1.6 billion as reimbursement for the cost of building those eight extra prisons.

The suit also asks the court to require the U.S. Immigration and Naturalization Service to begin deportation proceedings against all illegal immigrant felons and, in the case of Mexicans, to force the INS to deport felons who have completed their sentences to a place deep within their home country, rather than at the border.

The suit is the first of three Wilson intends to file against the federal government. The other two will seek reimbursement for the cost of educating illegal immigrants in public schools, which the governor estimates at $1.7 billion annually, and for providing emergency health care, which he says costs California $400 million a year.

Several legal experts interviewed by The Times questioned whether the state could even get a hearing on its lawsuit. They said it seems to run counter to the so-called sovereign immunity of the federal government, which bars claims seeking monetary damages.

That protection has been waived by Congress in limited areas, such as claims based on the negligence of a federal employee. A person run over by a postal truck, for example, could file suit and collect damages. But no such waiver exists for California to exploit in this instance, the lawyers said.

Brown, Wilson's legal adviser, said the suit does not address the immunity issue. If federal lawyers raise it as a defense, she said, the state will respond.

"We don't confront it," Brown said. "We have assumed that what we're doing can be done."

If the state is able to establish its right to sue, the real legal wrangling will begin.

The California lawsuit, like one filed earlier by Florida and suits contemplated by several other states, seeks to reinvigorate the concept of federalism--the idea that the 50 states are independent entities joined by mutual consent to a federal government whose powers are strictly limited.

In this vein, the suit argues, fixing federal immigration policy "is essential to the survival of California."

It adds: "At issue is whether the state of California will remain a sovereign government with the flexibility to establish policies and priorities responsive to the will of its electorate."

Allowing the federal government to force the states to implement policies using state-generated tax funds, the complaint says, turns the U.S. Constitution into a "suicide pact."

The Constitution's 10th Amendment assures state sovereignty, and until the mid-1930s it was commonly used to protect states from the intrusion of the federal government into their affairs. But beginning with challenges to President Franklin Roosevelt's New Deal social programs, the high court started rejecting 10th Amendment claims and has been doing so ever since.

Since 1937, the court has ruled for the states in only two cases, and one was later overturned. In the one that still stands, a 1992 ruling in a case brought by New York, the court struck down a federal law requiring the states to build nuclear waste dumps or else take possession of waste generated by private industry.